This portion of an appeal decision by the Fair Work Commission summarizes many of the legal principles involved in appeals, in particularly in unfair dismissal cases.
“Appeals against discretionary decisions and permission to appeal
[88]
An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.106 There is no right to appeal, and an appeal may only be made with the permission of the Commission. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.107 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.108
[89]
The decision was made under Part 3-2 – Unfair Dismissal of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. The public interest test in s 400(1) is not satisfied simply by the identification of error or a preference for a different result. The task of assessing whether the public interest test is met is discretionary and involves a broad value judgment.109 The public interest might be attracted where a matter raises issues of importance and general application; there is a diversity of decisions at first instance so that guidance from an appellate court is required; the decision at first instance manifests an injustice; the result is counter intuitive; or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.110
[90]
The Deputy President’s decision is of a discretionary nature. ‘Discretion refers to a decision-making process in which no one consideration and no combination of considerations is necessarily determinative of the result.111 The task of deciding whether a dismissal is unfair because it is harsh, unjust and/or unreasonable, is a discretionary decision in a broad sense.112 A decision maker charged with making a discretionary decision has some latitude as to the decision to be made, and given this, the correctness of the decision can only be challenged by showing error in the decision-making process,113 or that the discretion has not been correctly exercised.114 Discretionary error may also involve the decision maker acting on a wrong principle, allowing extraneous or irrelevant matters to guide or affect the decision, mistaking the facts or not taking into account a material consideration.115 A finding of discretionary error may also be inferred where although it may not appear how the primary decision maker has reached the result embodied in an order, upon the facts, the result is unreasonable or plainly
106 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
107 Wan v AIRC (2001) 116 FCR 481 at [30].
108 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
109 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
110 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]–[27].
111 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.
112 Ibid [20].
113 Ibid [21].
114 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
115 Ibid.
[2026] FWCFB 230
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unjust. In such cases, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.116 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Member at first instance, in the absence of appealable error.
[91]
In appeals relating to unfair dismissal matters, s 400(2) modifies the principles in relation to discretionary error by providing that appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact.’117 A significant error of fact can be characterised as an error that vitiates the ultimate exercise of the discretion.118 It is well-established that s 400(2) of the FW Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally, the test is stringent,119 and that s 400(2) evinces an intention of the legislature that appeals in unfair dismissal matters are more limited than appeals with respect to other matters.120”
The University of Melbourne v Dr Aleksander Owczarek [2026] FWCFB 230 delivered 4 September 2026 per Asbury VP, Clancy DP and Hampton DP